{"id":38636,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-of-control-severance-program-for-key-executives.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-of-control-severance-program-for-key-executives","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-of-control-severance-program-for-key-executives.html","title":{"rendered":"Change of Control Severance Program for Key Executives"},"content":{"rendered":"<pre>\n                     THE GILLETTE COMPANY CHANGE OF CONTROL\n                      SEVERANCE PROGRAM FOR KEY EXECUTIVES\n\n\n                                  INTRODUCTION\n\n                  The Gillette Company (the 'Company') believes that it is\nconsistent with the Company's long-standing employment practices and policies\nand in the best interests of the Company and its shareholders to treat fairly\nits employees whose employment terminates in connection with or following a\nChange of Control.\n\n                  Accordingly, the Company has determined that appropriate steps\nshould be taken to assure the Company of the continued employment and attention\nand dedication to duty of certain of its key management employees and to seek to\nensure the availability of their continued service, notwithstanding the\npossibility or occurrence of a Change of Control.\n\n                  Therefore, in order to fulfill the above purposes, the\nfollowing Change of Control Severance Program for Key Executives has been\ndeveloped and is hereby adopted.\n\n1.\n                                    ARTICLE I\n                              ESTABLISHMENT OF PLAN\n\n                  As of the Effective Date, the Company hereby establishes The\nGillette Company Change of Control Severance Program for Key Executives, as set\nforth in this document.\n\n2.\n                                   ARTICLE II\n                                   DEFINITIONS\n\n                  As used herein the following words and phrases shall have the\nfollowing respective meanings (unless the context clearly indicates otherwise):\n\n         (a) AFFILIATE. Any entity controlled by, controlling or under common\ncontrol with the Company.\n\n         (b) ANNUAL BASE SALARY. Twelve times the higher of (i) the highest\nmonthly base salary paid or payable to the Participant by the Company and its\nAffiliates in respect of the twelve-month period immediately preceding the month\nin which the Change of Control occurs, and (ii) the highest monthly base salary\nin effect at any time thereafter, in each case including any base salary that\nhas been earned and deferred.\n\n         (c) BOARD. The Board of Directors of The Gillette Company.\n\n\n\n\n         (d) BONUS PAYMENT AMOUNT. The amount actually paid to a Participant\npursuant to Section 13 of the Company's Incentive Bonus Plan or any comparable\nprovision of any successor annual bonus plan.\n\n         (e) CAUSE. As defined in Section 4.2(b)(i).\n\n         (f) CHANGE OF CONTROL. The first to occur of the following events:\n\n                  (i) The acquisition by any individual, entity or group (within\n         the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange\n         Act of 1934, as amended (the 'Exchange Act')) (a 'Person') of\n         beneficial ownership (within the meaning of Rule 13d-3 promulgated\n         under the Exchange Act) of 20% or more of either (a) the then\n         outstanding shares of common stock of the Company (the 'Outstanding\n         Company Common Stock') or (b) the combined voting power of the then\n         outstanding voting securities of the Company entitled to vote generally\n         in the election of directors (the 'Outstanding Company Voting\n         Securities'); PROVIDED, HOWEVER, that for purposes of this subsection\n         (i), the following acquisitions shall not constitute a Change of\n         Control: (A) any acquisition directly from the Company, (B) any\n         acquisition by the Company, (C) any acquisition by any employee benefit\n         plan (or related trust) sponsored or maintained by the Company or any\n         corporation controlled by the Company or (D) any acquisition pursuant\n         to a transaction which complies with clauses (A), (B) and (C) of\n         subsection (iii) of this Section 2(e); or\n\n                      (ii) Individuals who, as of the Effective Date, constitute\n         the Board (the 'Incumbent Board') cease for any reason to constitute at\n         least a majority of the Board; PROVIDED, HOWEVER, that any individual\n         becoming a director subsequent to the Effective Date whose election, or\n         nomination for election by the Company's shareholders, was approved by\n         a vote of at least a majority of the directors then comprising the\n         Incumbent Board shall be considered as though such individual were a\n         member of the Incumbent Board, but excluding, for this purpose, any\n         such individual whose initial assumption of office occurs as a result\n         of an actual or threatened election contest with respect to the\n         election or removal of directors or other actual or threatened\n         solicitation of proxies or consents by or on behalf of a Person other\n         than the Board; or\n\n                      (iii) Consummation of a reorganization, merger or\n         consolidation or sale or other disposition of all or substantially all\n         of the assets of the Company or the acquisition of assets of another\n         entity (a 'Corporate Transaction'), in each case, unless, immediately\n         following such Corporate Transaction, (A) all or substantially all of\n         the individuals and entities who were the beneficial owners,\n         respectively, of the Outstanding Company Common Stock and Outstanding\n         Company Voting Securities immediately prior to such Corporate\n         Transaction beneficially own, directly or indirectly, more than 60% of,\n         respectively, the then outstanding shares of common stock and the\n         combined voting power of the then outstanding voting securities\n         entitled to vote generally in the election of directors, as the case\n         may be, of the corporation resulting from such Corporate Transaction\n         (including, without limitation, a corporation which as a result of such\n         transaction owns the Company or all or substantially all of the\n         Company's assets either \n\n\n                                      -2-\n\n\n\n\n         directly or through one or more subsidiaries) in substantially the same\n         proportions as their ownership, immediately prior to such Corporate\n         Transaction of the Outstanding Company Common Stock and Outstanding\n         Company Voting Securities, as the case may be, (B) no Person (excluding\n         any employee benefit plan (or related trust) of the Company or such\n         corporation resulting from such Corporate Transaction) beneficially\n         owns, directly or indirectly, 20% or more of, respectively, the then\n         outstanding shares of common stock of the corporation resulting from\n         such Corporate Transaction or the combined voting power of the then\n         outstanding voting securities of such corporation except to the extent\n         that such ownership existed prior to the Corporate Transaction and (C)\n         at least a majority of the members of the board of directors of the\n         corporation resulting from such Corporate Transaction were members of\n         the Incumbent Board at the time of the execution of the initial Plan,\n         or of the action of the Board, providing for such Corporate\n         Transaction; or\n\n                  (iv) Approval by the shareholders of the Company of a complete\n         liquidation or dissolution of the Company.\n\n         (g) CODE. The Internal Revenue Code of 1986, as amended from time to\ntime.\n\n         (h) COMMITTEE. The Personnel Committee of the Board.\n\n         (i) COMPANY. The Gillette Company and any successor thereto.\n\n         (j) COVERAGE PERIOD. As defined in Section 3A.1.\n\n         (k) DATE OF TERMINATION. (i) If the Participant's employment is\nterminated by the Company for Cause or by the Participant for Good Reason, the\ndate of receipt of the Notice of Termination (as described in Section 4.2(c)) or\nany later date specified therein, as the case may be, (ii) if the Participant's\nemployment is terminated by the Company other than for Cause or Disability, the\nDate of Termination shall be the date on which the Company notifies the\nParticipant of such termination and (iii) if the Participant's employment is\nterminated by reason of death or Disability, the Date of Termination shall be\nthe date of death of the Participant or the Disability Effective Date, as the\ncase may be.\n\n         (l) DISABILITY. As defined in Section 4.2(b)(ii).\n\n         (m) DISABILITY EFFECTIVE DATE. As defined in Section 4.2(b)(ii).\n\n         (n) EFFECTIVE DATE. December 16, 1999.\n\n         (o) EMPLOYER. The Company or any of its Affiliates.\n\n         (p) EXCISE TAX. The excise tax imposed by Section 4999 of the Code,\ntogether with any interest or penalties imposed with respect to such excise tax.\n\n         (q) GOOD REASON. As defined in Section 4.2(a).\n\n\n                                      -3-\n\n\n\n         (r) HIGHEST ANNUAL BONUS. An amount equal to the product of the\nParticipant's Annual Base Salary at the Date of Termination and the Highest\nAnnual Bonus Percentage.\n\n         (s) HIGHEST ANNUAL BONUS PERCENTAGE. The higher of the Participant's\nRecent Annual Bonus Percentage and thirty-five percent (35%).\n\n         (t) KEY EXECUTIVE. An employee who is employed on a regular basis by an\nEmployer in a position having grade 25 or above (or having a personal grade of\n25 or above) or in such other position designated by the Company's Senior Vice\nPresident - Personnel and Administration as being eligible to participate in\nthis Plan, excluding any such employee who is a party to an employment agreement\nwith the Company which becomes effective in the event of a Change of Control.\n\n         (u) NON-US EXECUTIVE. A Key Executive whose designated home country,\nfor purposes of the Employer's personnel and benefits programs and policies, is\nother than the United States.\n\n         (v) PARTICIPANT. A Key Executive who meets the eligibility requirements\nof Section 3.1; provided, however, that any Non-US Executive who, under the laws\nof his or her designated home country or the legally enforceable programs or\npolicies of the Employer in such designated home country, is entitled to\nreceive, in the event of termination of employment (whether or not by reason of\na Change of Control), separation benefits at least equal in aggregate amount to\nthe Separation Pay prescribed under Section 4.3(b), shall not be considered a\nParticipant for the purposes of this Plan.\n\n         (w) PAYMENT. Any payment or distribution in the nature of compensation\n(within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of\nthe Participant, whether paid or payable pursuant to this Plan or otherwise.\n\n         (x) PLAN. The Gillette Company Change of Control Severance Program for\nKey Executives, as set forth herein.\n\n         (y) PLAN ADMINISTRATOR. The third-party accounting, actuarial or\nconsulting firm retained by the Company prior to a Change of Control to\nadminister this Program following a Change of Control.\n\n         (z) RECENT ANNUAL BONUS PERCENTAGE. The highest actual annual bonus\npercentage awarded to the Participant under the Company's annual incentive\nplans, or any comparable bonus under any predecessor or successor plan, for the\nlast three full fiscal years prior to the Change of Control (and equal to 35% in\nthe event that the Participant was not employed by the Employer for one full\nfiscal year prior to the Change of Control).\n\n         (aa) REQUIRED COMPENSATION. With respect to any Participant, the sum of\n(i) the Participant's Annual Base Salary and (ii) an amount equal to the product\nof (A) the Participant's Annual Base Salary and (B) the Recent Annual Bonus\nPercentage.\n\n\n                                      -4-\n\n\n\n         (bb) SEPARATION BENEFITS. The amounts and benefits payable or required\nto be provided in accordance with Section 4.3.\n\n         (cc) SEPARATION PAY. The amounts or amounts payable in accordance with\nSection 4.3(b).\n\n         (dd) US PARTICIPANT. A Participant whose designated home country, for\npurposes of the Employer's personnel and benefits programs and policies, is the\nUnited States.\n\n3.\n                                   ARTICLE III\n                                   ELIGIBILITY\n\n3.1 PARTICIPATION. Except as set forth in paragraph (v) of Article II, each\nemployee who is a Key Executive on the Effective Date shall be a Participant in\nthe Plan effective as of the Effective Date and each other employee shall become\na Participant in the Plan effective as of the date of the employee's promotion\nor hire as a Key Executive.\n\n3.2 DURATION OF PARTICIPATION. A Participant shall cease to be a Participant in\nthe Plan if (i) he or she ceases to be employed by an Employer under\ncircumstances not entitling him or her to Separation Benefits or (ii) he or she\notherwise ceases to be a Key Executive, provided that no Key Executive may be so\nremoved from Plan participation in connection with or in anticipation of a\nChange of Control that actually occurs. Notwithstanding the foregoing, a\nParticipant who is entitled, as a result of ceasing to be a Key Executive of an\nEmployer, to receive benefits under the Plan shall remain a Participant in the\nPlan until the amounts and benefits payable under the Plan have been paid or\nprovided to the Participant in full.\n\n\n                                  ARTICLE III-A\n                      BENEFITS FOLLOWING CHANGE OF CONTROL\n\n3A.1 CONTINUATION OF BENEFIT PLAN PARTICIPATION. During the period commencing on\nthe date a Change of Control occurs and ending on the second anniversary of such\ndate ('Coverage Period'), each US Participant and\/or the US Participant's\nfamily, as the case may be, shall be eligible for participation in and shall\nreceive all benefits under the savings, retirement, welfare and fringe benefit\nplans, practices, policies and programs provided by the Employer to the extent\napplicable generally to other peer executives of the Employer, but in no event\nshall such plans, practices, policies and programs provide the US Participant\nwith benefits of lesser value, in the aggregate, than the plans, practices,\npolicies and programs in which the US Participant participated immediately prior\nto the Change of Control or, if more favorable to the US Participant, those\nprovided generally at any time after the Effective Date to other peer executives\nof the Employer.\n\n3A.2 ANNUAL BONUS. For each fiscal year of the Company ending during the\nCoverage Period, each Participant shall be awarded an annual bonus in cash which\nshall not be less than the product of (i) the Participant's Annual Base Salary\nand (ii) the Participant's Recent Annual Bonus Percentage. If, prior to the end\nof a fiscal year ending during the Coverage Period, a \n\n\n\n\n                                      -5-\n\n\nParticipant's employment is terminated for Disability or as a result of the\nParticipant's death, or the Participant terminates his or her own employment\nother than for Good Reason, the Participant shall be awarded a prorated annual\nbonus (determined in accordance with the preceding sentence) for such fiscal\nyear. Each such annual bonus shall be paid to the Participant no later than the\nend of the third month of the fiscal year next following the fiscal year for\nwhich such annual bonus is awarded, unless the Participant elects to defer the\nreceipt of such annual bonus.\n\n4.\n                                   ARTICLE IV\n                               SEPARATION BENEFITS\n\n4.1 RIGHT TO SEPARATION BENEFITS. A Participant shall be entitled to receive\nfrom the Company the Separation Benefits as provided in Section 4.3, if a Change\nof Control has occurred and the Participant's employment by an Employer is\nterminated under circumstances specified in Section 4.2(a), whether the\ntermination is voluntary or involuntary, and if (i) such termination occurs\nafter such Change of Control and on or before the second anniversary thereof, or\n(ii) such termination is reasonably demonstrated by the Participant to have been\ninitiated by a third party that has taken steps reasonably calculated to effect\na Change of Control or otherwise to have arisen in connection with or in\nanticipation of such Change of Control.\n\n4.2 TERMINATION OF EMPLOYMENT.\n\n         (a) TERMINATIONS WHICH GIVE RISE TO SEPARATION BENEFITS UNDER THIS\nPLAN. The circumstances specified in this Section 4.2(a) are any termination of\nemployment with an Employer by action of the Company or any of its Affiliates or\nby a Participant for Good Reason, other than as set forth in Section 4.2(b)\nbelow. For purposes of this Plan, 'Good Reason' shall mean:\n\n                  (i) the assignment to the Participant of any duties\n         inconsistent in any respect with the Participant's position (including\n         status, offices, titles and reporting requirements), authority, duties\n         or responsibilities as in effect immediately prior to the Change of\n         Control, or any other action by the Company or the Employer that\n         results in a diminution in such position, authority, duties or\n         responsibilities, excluding for this purpose an isolated, insubstantial\n         and inadvertent action not taken in bad faith and that is remedied by\n         the Company and\/or the Employer promptly after receipt of notice\n         thereof given by the Participant;\n\n                  (ii) a decrease in the Participant's compensation below the\n         Required Compensation, other than an isolated, insubstantial and\n         inadvertent failure not occurring in bad faith and that is remedied by\n         the Company and\/or the Employer promptly after receipt of notice\n         thereof given by the Participant;\n\n                  (iii) the Company's or the Affiliate's requiring the\n         Participant to be based at any office or location other than (A) the\n         office or where the Participant was based and performed services\n         immediately prior to the Change of Control or (B) any other location\n\n\n                                      -6-\n\n\n         less than 35 miles from such office, or the Company's or the\n         Affiliate's requiring the Participant to travel on business to a\n         substantially greater extent than required immediately prior to the\n         Change of Control;\n\n                  (iv) any purported termination by the Company or the Affiliate\n         of the Participant's employment otherwise than as expressly permitted\n         by this Plan; or\n\n                  (v) any failure by the Company to require any successor\n         (whether direct or indirect, by purchase, merger, consolidation or\n         otherwise) to all or substantially all of the business and\/or assets of\n         the Company to assume expressly and agree to perform this Plan in the\n         same manner and to the same extent that the Company would be required\n         to perform it if no such succession had taken place, as required by\n         Article V.\n\n         (b) TERMINATIONS WHICH DO NOT GIVE RISE TO SEPARATION BENEFITS UNDER\nTHIS PLAN. Notwithstanding Section 4.2(a), if a Participant's employment is\nterminated for Cause or Disability (as those terms are defined below) or as a\nresult of the Participant's death, or the Participant terminates his or her own\nemployment other than for Good Reason, the Participant shall not be entitled to\nSeparation Benefits under the Plan, regardless of the occurrence of a Change of\nControl.\n\n                  (i) A termination for 'Cause' shall have occurred where a\n         Participant is terminated because of:\n\n                           (A) the willful and continued failure of the\n                  Participant to perform substantially the Participant's duties\n                  with the Company or any of the Affiliates (other than any such\n                  failure resulting from incapacity due to physical or mental\n                  illness), after a written demand for substantial performance\n                  is delivered to the Participant by the Board or an elected\n                  officer of the Company which specifically identifies the\n                  manner in which the Board or the elected officer believes that\n                  the Participant has not substantially performed the\n                  Participant's duties; or\n\n                           (B) the willful engaging by the Participant in\n                  illegal conduct or gross misconduct which is materially and\n                  demonstrably injurious to the Company or the Affiliate.\n\n         For purposes of this Section 4.2(b)(i), no act, or failure to act, on\n         the part of the Participant shall be considered 'willful' unless it is\n         done, or omitted to be done, by the Participant in bad faith or without\n         reasonable belief that the Participant's action or omission was in the\n         best interests of the Company or the Affiliate. Any act, or failure to\n         act, based upon authority given pursuant to a resolution duly adopted\n         by the Board or upon the instructions of the Chief Executive Officer of\n         the Company or a senior officer of the Company or based upon the advice\n         of counsel for the Company or the Affiliate shall be conclusively\n         presumed to be done, or omitted to be done, by the Participant in good\n         faith and in the best interests of the Company or the Affiliate.\n\n\n                                      -7-\n\n\n                  (ii) A termination for 'Disability' shall have occurred where\n         a Participant is absent from the Participant's duties with the Employer\n         on a full-time basis for 180 consecutive business days as a result of\n         incapacity due to mental or physical illness which is determined to be\n         total and permanent by a physician selected by the Company or its\n         insurers and acceptable to the Participant or the Participant's legal\n         representative. In such event, the Participant's employment with the\n         Employer shall terminate effective on the 30th day after receipt of\n         such notice by the Participant (the 'Disability Effective Date'),\n         provided that, within the 30 days after such receipt, the Participant\n         shall not have returned to full-time performance of the Participant's\n         duties.\n\n         (c) NOTICE OF TERMINATION. Any termination by the Company for Cause, or\nby the Participant for Good Reason, shall be communicated by a Notice of\nTermination to the other party. For purposes of this Plan, a 'Notice of\nTermination' means a written notice which (i) indicates the specific termination\nprovision in this Plan relied upon, (ii) to the extent applicable, sets forth in\nreasonable detail the facts and circumstances claimed to provide a basis for\ntermination of the Participant's employment under the provision so indicated and\n(iii) if the Date of Termination is other than the date of receipt of such\nnotice, specifies the termination date (which date shall be not more than 30\ndays after the giving of such notice). The failure by the Participant or the\nCompany to set forth in the Notice of Termination any fact or circumstance which\ncontributes to a showing of Good Reason or Cause shall not waive any right of\nthe Participant or the Company, respectively, hereunder or preclude the\nParticipant or the Company, respectively, from asserting such fact or\ncircumstance in enforcing the Participant's or the Company's rights hereunder.\n\n4.3 SEPARATION BENEFITS. If a Participant's employment is terminated under the\ncircumstances set forth in Section 4.2(a) entitling him or her to Separation\nBenefits, the Company shall pay or provide, as the case may be, to the\nParticipant the amounts and benefits set forth in items (a) through (e) below\n(the 'Separation Benefits'):\n\n         (a) The Company shall pay to the Participant, in a lump sum in cash\nwithin 30 days after the Date of Termination, the sum of (A) the Participant's\nAnnual Base Salary through the Date of Termination to the extent not theretofore\npaid, (B) the product of (x) the Participant's Highest Annual Bonus and (y) a\nfraction, the numerator of which is the number of days in the current fiscal\nyear through the Date of Termination and the denominator of which is 365,\nreduced (but not below zero), if the Date of Termination occurs in the same\nfiscal year as the Change of Control, by the Participant's Bonus Payment Amount,\n(C) if elected by the Participant, any compensation previously deferred by the\nParticipant under the Company's Supplemental Savings Plan, Incentive Bonus Plan\nand\/or Stock Equivalent Unit Plan (together with any accrued interest or\nearnings thereon), and (D) any accrued vacation pay, in each case to the extent\nnot theretofore paid (the sum of the amounts described in subclauses (A), (B),\n(C) and (D), the 'Accrued Obligations').\n\n          (b) The Company also shall pay to the Participant an amount\n('Separation Pay') equal to the product of (A) two and (B) the sum of (x) the\nParticipant's Annual Base Salary and (y) the Participant's Highest Annual Bonus,\nreduced (but not below zero) in the case of any Participant who is a Non-US\nExecutive by the US dollar equivalent (determined as of the \n\n\n\n                                      -8-\n\n\nParticipant's Date of Termination) of any payments made to the Participant under\nthe laws of his or her designated home country or any program or policy of the\nEmployer in such country on account of the Participant's termination of\nemployment. A Participant may elect to receive Separation Pay either ratably as\ncontinuing salary payments over a period not to exceed two years following the\nParticipant's Date of Termination or as a single lump sum cash payment;\nprovided, however, that a Participant who, as of the Date of Termination, is\nwithin five years of qualifying for early or normal retirement under a\ntax-qualified retirement plan maintained by the Company or its Affiliates, may\nextend the period for payment of the Separation Pay as continued salary payments\nuntil the date of earliest eligibility for retirement. Separation Pay received\nas a lump sum payment is not eligible for Savings Plan contribution, nor is such\npayment considered pension-eligible compensation.\n\n         (c) Solely with respect to US Participants, for two years after the\nParticipant's Date of Termination, or such longer period as may be provided by\nthe terms of the appropriate plan, program, practice or policy, the Company\nshall continue welfare benefits to the Participant and\/or the Participant's\nfamily at least equal to those which would have been provided to them in\naccordance with the plans, programs, practices and policies (including, without\nlimitation, medical, prescription, dental, disability, employee\/spouse\/child\nlife insurance, executive life, estate preservation (second-to-die life\ninsurance) and travel accident insurance plans and programs), as if the\nParticipant's employment had not been terminated, or, if more favorable to the\nParticipant, as in effect generally at any time thereafter with respect to other\npeer executives of the Company and its Affiliates and their families; provided,\nhowever, that if the Participant becomes reemployed with another employer and is\neligible to receive medical or other welfare benefits under another employer\nprovided plan, the medical and other welfare benefits described herein shall be\nsecondary to those provided under such other plan during such applicable period\nof eligibility. For purposes of determining the Participant's eligibility for\nretiree benefits pursuant to such welfare plans, practices, programs and\npolicies, the Participant shall be considered to have remained employed until\ntwo years after the Date of Termination, provided, however, that the Executive's\ncommencement of such retiree benefits shall not be any sooner than the\nExecutive's earliest retirement date under the Company's tax-qualified\nRetirement Plan.\n\n         (d) The Company shall, at its sole expense, provide the Participant\nwith outplacement services through the provider of the Company's choice, the\nscope of which shall be chosen by the Participant in his or her sole discretion\nwithin the terms and conditions of the Company's outplacement services policy as\nin effect immediately prior to the Change of Control.\n\n         (e) To the extent not theretofore paid or provided, the Employer shall\ntimely pay or provide to the Participant any other amounts or benefits required\nto be paid or provided or that the Participant is eligible to receive under any\nplan, program, policy or practice or contract or agreement of the Company and\nits Affiliates.\n\n4.4 CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. (a) Anything in this Plan to the\ncontrary notwithstanding, with respect to any Participant who is a citizen or\nresident of the United States, in the event it shall be determined that any\nPayment would be subject to the Excise Tax, then the Participant shall be\nentitled to receive an additional payment (a 'Gross-Up Payment') in an amount\nsuch that after payment by the Participant of all taxes (including any interest\nor penalties \n\n\n\n                                      -9-\n\n\nimposed with respect to such taxes), including, without limitation, any income\ntaxes (and any interest and penalties imposed with respect thereto) and Excise\nTax imposed upon the Gross-Up Payment, the Participant retains an amount of the\nGross-Up Payment equal to the Excise Tax imposed upon the Payments.\n\n         (b) Subject to the provisions of Section 4.4(c), all determinations\nrequired to be made under this Section 4.4, including whether and when a\nGross-Up Payment is required and the amount of such Gross-Up Payment and the\nassumptions to be utilized in arriving at such determination, shall be made by\nKPMG Peat Marwick LLP or such other nationally recognized certified public\naccounting firm as may be designated by the Participant (the 'Accounting Firm')\nwhich shall provide detailed supporting calculations both to the Company and the\nParticipant within 15 business days of the receipt of notice from the\nParticipant that there has been a Payment, or such earlier time as is requested\nby the Company. All fees and expenses of the Accounting Firm shall be borne\nsolely by the Company. Subject to Section 4.4(e) below, any Gross-Up Payment, as\ndetermined pursuant to this Section 4.4, shall be paid by the Company to the\nParticipant within five days of the receipt of the Accounting Firm's\ndetermination. Any determination by the Accounting Firm shall be binding upon\nthe Company and the Participant. As a result of the uncertainty in the\napplication of Section 4999 of the Code at the time of the initial determination\nby the Accounting Firm hereunder, it is possible that Gross-Up Payments which\nwill not have been made by the Company should have been made ('Underpayment'),\nconsistent with the calculations required to be made hereunder. In the event\nthat the Company exhausts its remedies pursuant to Section 4.4(c) and the\nParticipant thereafter is required to make a payment of any Excise Tax, the\nAccounting Firm shall determine the amount of the Underpayment that has occurred\nand any such Underpayment shall be promptly paid by the Company to or for the\nbenefit of the Participant.\n\n         (c) The Participant shall notify the Company in writing of any claim by\nthe Internal Revenue Service that, if successful, would require the payment by\nthe Company of the Gross-Up Payment. Such notification shall be given as soon as\npracticable but no later than ten business days after the Participant is\ninformed in writing of such claim and shall apprise the Company of the nature of\nsuch claim and the date on which such claim is requested to be paid. The\nParticipant shall not pay such claim prior to the expiration of the 30-day\nperiod following the date on which it gives such notice to the Company (or such\nshorter period ending on the date that any payment of taxes with respect to such\nclaim is due). If the Company notifies the Participant in writing prior to the\nexpiration of such period that it desires to contest such claim, the Participant\nshall:\n\n                  (i) give the Company any information reasonably requested by\n         the Company relating to such claim,\n\n                  (ii) take such action in connection with contesting such claim\n         as the Company shall reasonably request in writing from time to time,\n         including, without limitation, accepting legal representation with\n         respect to such claim by an attorney reasonably selected by the\n         Company,\n\n\n                                      -10-\n\n\n\n                  (iii) cooperate with the Company in good faith in order\n         effectively to contest such claim, and\n\n                  (iv) permit the Company to participate in any proceedings\n         relating to such claim;\n\nPROVIDED, HOWEVER, that the Company shall bear and pay directly all costs and\nexpenses (including additional interest and penalties) incurred in connection\nwith such contest and shall indemnify and hold the Participant harmless, on an\nafter-tax basis, for any Excise Tax or income tax (including interest and\npenalties with respect thereto) imposed as a result of such representation and\npayment of costs and expenses. Without limitation on the foregoing provisions of\nthis Section 4.4(c), the Company shall control all proceedings taken in\nconnection with such contest and, at its sole option, may pursue or forgo any\nand all administrative appeals, proceedings, hearings and conferences with the\ntaxing authority in respect of such claim and may, at its sole option, either\ndirect the Participant to pay the tax claimed and sue for a refund or contest\nthe claim in any permissible manner, and the Participant agrees to prosecute\nsuch contest to a determination before any administrative tribunal, in a court\nof initial jurisdiction and in one or more appellate courts, as the Company\nshall determine; PROVIDED, HOWEVER, that if the Company directs the Participant\nto pay such claim and sue for a refund, the Company shall advance the amount of\nsuch payment to the Participant, on an interest-free basis and shall indemnify\nand hold the Participant harmless, on an after-tax basis, from any Excise Tax or\nincome tax (including interest or penalties with respect thereto) imposed with\nrespect to such advance or with respect to any imputed income with respect to\nsuch advance; and further provided that any extension of the statute of\nlimitations relating to payment of taxes for the taxable year of the Participant\nwith respect to which such contested amount is claimed to be due is limited\nsolely to such contested amount. Furthermore, the Company's control of the\ncontest shall be limited to issues with respect to which a Gross-Up Payment\nwould be payable hereunder and the Participant shall be entitled to settle or\ncontest, as the case may be, any other issue raised by the Internal Revenue\nService or any other taxing authority.\n\n         (d) If, after the receipt by the Participant of an amount advanced by\nthe Company pursuant to Section 4.4(c), the Participant becomes entitled to\nreceive any refund with respect to such claim, the Participant shall (subject to\nthe Company's complying with the requirements of Section 4.4(c)) promptly pay to\nthe Company the amount of such refund (together with any interest paid or\ncredited thereon after taxes applicable thereto). If, after the receipt by the\nParticipant of an amount advanced by the Company pursuant to Section 4.4(c), a\ndetermination is made that the Participant shall not be entitled to any refund\nwith respect to such claim and the Company does not notify the Participant in\nwriting of its intent to contest such denial of refund prior to the expiration\nof 30 days after such determination, then such advance shall be forgiven and\nshall not be required to be repaid and the amount of such advance shall offset,\nto the extent thereof, the amount of Gross-Up Payment required to be paid.\n\n         (e) Notwithstanding any other provision of this Section 4.4, the\nCompany may withhold and pay over to the Internal Revenue Service for the\nbenefit of the Participant all or any portion of the Gross-Up Payment that it\ndetermines in good faith that it is or may be in the future required to\nwithhold, and the Participant hereby consents to such withholding.\n\n\n                                      -11-\n\n\n4.5 PAYMENT OBLIGATIONS ABSOLUTE. Upon a Change of Control, the obligations of\nthe Company and its Affiliates to pay or provide the Separation Benefits\ndescribed in Section 4.3 shall be absolute and unconditional and shall not be\naffected by any circumstances, including, without limitation, any set-off,\ncounterclaim, recoupment, defense or other right which the Company or any of the\nAffiliates may have against any Participant. In no event shall a Participant be\nobligated to seek other employment or take any other action by way of mitigation\nof the amounts payable to a Participant under any of the provisions of this\nPlan, nor shall the amount of any payment or value of any benefits hereunder be\nreduced by any compensation or benefits earned by a Participant as a result of\nemployment by another employer, except as specifically provided under Section\n4.3.\n\n4.6 NON-EXCLUSIVITY OF RIGHTS. Nothing in this Plan shall prevent or limit the\nParticipant's continuing or future participation in any plan, program, policy or\npractice provided by the Company or any of the Affiliates and for which the\nParticipant may qualify, nor, subject to Section 7.2, shall anything herein\nlimit or otherwise affect such rights as the Participant may have under any\ncontract or agreement with the Company or any of the Affiliates. Amounts or\nbenefits which the Participant is otherwise entitled to receive under any plan,\npolicy, practice or program of or any contract or agreement with the Company or\nany of the Affiliates shall be payable in accordance with such plan, policy,\npractice or program or contract or agreement, except as explicitly modified by\nthis Plan.\n\n5.\n                                    ARTICLE V\n                              SUCCESSOR TO COMPANY\n\n                  This Plan shall bind any successor of the Company, its assets\nor its businesses (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise), in the same manner and to the same extent that the\nCompany would be obligated under this Plan if no succession had taken place.\n\n                  In the case of any transaction in which a successor would not\nby the foregoing provision or by operation of law be bound by this Plan, the\nCompany shall require such successor expressly and unconditionally to assume and\nagree to perform the Company's obligations under this Plan, in the same manner\nand to the same extent that the Company would be required to perform if no such\nsuccession had taken place. The term 'Company,' as used in this Plan, shall mean\nthe Company as hereinbefore defined and any successor or assignee to the\nbusiness or assets which by reason hereof becomes bound by this Plan.\n\n6.\n                                   ARTICLE VI\n                       DURATION, AMENDMENT AND TERMINATION\n\n6.1 DURATION. This Plan shall remain in effect until terminated as provided in\nSection 6.2. Notwithstanding the foregoing, if a Change of Control occurs, this\nPlan shall continue in full \n\n\n\n                                      -12-\n\n\nforce and effect and shall not terminate or expire until after all Participants\nwho become entitled to any payments or benefits hereunder shall have received\nsuch payments or benefits in full.\n\n6.2 AMENDMENT AND TERMINATION. The Plan may be terminated or amended in any\nrespect by resolution adopted by a majority of the Board, unless a Change of\nControl has previously occurred. However, after the Board has knowledge of a\npossible transaction or event that if consummated would constitute a Change of\nControl, this Plan may not be terminated or amended in any manner which would\nadversely affect the rights or potential rights of Participants, unless and\nuntil the Board has determined that all transactions or events that, if\nconsummated, would constitute a Change of Control have been abandoned and will\nnot be consummated, and, provided that, the Board does not have knowledge of\nother transactions or events that, if consummated, would constitute a Change of\nControl. If a Change of Control occurs, the Plan shall no longer be subject to\namendment, change, substitution, deletion, revocation or termination in any\nrespect that adversely affects the rights of Participants, and no Participant\nshall be removed from Plan participation.\n\n\n                                   ARTICLE VII\n                                  MISCELLANEOUS\n7.\n7.1 LEGAL FEES. The Company agrees to pay, to the full extent permitted by law,\nall legal fees and expenses which the Participant may reasonably incur as a\nresult of any contest (regardless of the outcome thereof) by the Company or the\nAffiliates, the Participant or others of the validity or enforceability of, or\nliability under, any provision of this Plan or any guarantee of performance\nthereof (including as a result of any contest by the Participant about the\namount of any payment pursuant to this Plan), plus in each case interest on any\ndelayed payment at the applicable Federal rate provided for in Section\n7872(f)(2)(A) of the Code.\n\n7.2 EMPLOYMENT STATUS. This Plan does not constitute a contract of employment or\nimpose on the Participant, the Company or the Participant's Employer any\nobligation to retain the Participant as an employee, to change the status of the\nParticipant's employment as an 'at will' employee, or to change the Company's or\nthe Affiliates' policies regarding termination of employment.\n\n7.3 TAX WITHHOLDING. The Company may withhold from any amounts payable under\nthis Plan such Federal, state, local or foreign taxes as shall be required to be\nwithheld pursuant to any applicable law or regulation.\n\n7.4 VALIDITY AND SEVERABILITY. The invalidity or unenforceability of any\nprovision of the Plan shall not affect the validity or enforceability of any\nother provision of the Plan, which shall remain in full force and effect, and\nany prohibition or unenforceability in any jurisdiction shall not invalidate or\nrender unenforceable such provision in any other jurisdiction.\n\n7.5 GOVERNING LAW. The validity, interpretation, construction and performance of\nthe Plan shall in all respects be governed by the laws of Delaware, without\nreference to principles of conflict of law.\n\n\n                                      -13-\n\n\n7.6 CLAIM PROCEDURE. If a Participant makes a written request alleging a right\nto receive Separation Benefits under the Plan or alleging a right to receive an\nadjustment in benefits being paid under the Plan, the Company shall treat it as\na claim for benefits. All claims for Separation Benefits under the Plan shall be\nsent to the General Counsel of the Company and must be received within 30 days\nafter the Date of Termination. If the Company determines that any individual who\nhas claimed a right to receive Separation Benefits under the Plan is not\nentitled to receive all or a part of the benefits claimed, it will inform the\nclaimant in writing of its determination and the reasons therefor in terms\ncalculated to be understood by the claimant. The notice will be sent within 90\ndays of the written request, unless the Company determines additional time, not\nexceeding 90 days, is needed. The notice shall make specific reference to the\npertinent Plan provisions on which the denial is based, and describe any\nadditional material or information that is necessary. Such notice shall, in\naddition, inform the claimant what procedure the claimant should follow to take\nadvantage of the review procedures set forth below in the event the claimant\ndesires to contest the denial of the claim. The claimant may within 90 days\nthereafter submit in writing to the Plan Administrator a notice that the\nclaimant contests the denial of his or her claim by the Company and desires a\nfurther review. The Plan Administrator shall within 60 days thereafter review\nthe claim and authorize the claimant to appear personally and review the\npertinent documents and submit issues and comments relating to the claim to the\npersons responsible for making the determination on behalf of the Plan\nAdministrator. The Plan Administrator will render its final decision with\nspecific reasons therefor in writing and will transmit it to the claimant within\n60 days of the written request for review, unless the Plan Administrator\ndetermines additional time, not exceeding 60 days, is needed, and so notifies\nthe Participant. If the Plan Administrator fails to respond to a claim filed in\naccordance with the foregoing within 60 days or any such extended period, the\nPlan Administrator shall be deemed to have denied the claim.\n\n7.7 UNFUNDED PLAN STATUS. This Plan is intended to be an unfunded plan and to\nqualify as a severance pay plan within the meaning of Labor Department\nRegulations section 2510.3-2(b). All payments pursuant to the Plan shall be made\nfrom the general funds of the Company and no special or separate fund shall be\nestablished or other segregation of assets made to assure payment. No\nParticipant or other person shall have under any circumstances any interest in\nany particular property or assets of the Company as a result of participating in\nthe Plan. Notwithstanding the foregoing, the Company may (but shall not be\nobligated to) create one or more grantor trusts, the assets of which are subject\nto the claims of the Company's creditors, to assist it in accumulating funds to\npay its obligations under the Plan.\n\n7.8 RELIANCE ON ADOPTION OF PLAN. Each person who shall become a Key Executive\nshall be deemed to have served and continue to serve in such capacity in\nreliance upon the change of control provisions contained in this Plan.\n\n\n\n\n                                      -14-\n\n\n\n\n\n7.9 PROGRAM SUPERSEDES PRIOR US ARRANGEMENTS. For the period of two years\nfollowing the occurrence of a Change of Control, the provisions of this Program\nshall supersede, with respect to US Participants, any and all plans, programs,\npolicies and arrangements of the Company providing severance benefits.\n\nIN WITNESS WHEREOF, The Gillette Company has caused this Plan to be executed by\nits duly authorized officer effective as of the Effective Date set forth above.\n\n                                       THE GILLETTE COMPANY\n\n\n                                       By: \/s\/ Robert E. DiCenso\n                                           ---------------------------------  \n                                           Senior Vice President - Personnel\n                                           and Administration\n\n\n\n\n\n                                      -15-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7640],"corporate_contracts_industries":[9395],"corporate_contracts_types":[9539,9544],"class_list":["post-38636","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gillette-co","corporate_contracts_industries-consumer__cleaning","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38636","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38636"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38636"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38636"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38636"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}